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Dillard’s Model Loses Image Rights Case

DALLAS (CN) - A model cannot collect damages from retailer Dillard's and a Dallas modeling agency for using his image on underwear packaging because the statute of limitations has expired, a Texas appeals court ruled.

A three-judge panel with the 5th District Court of Appeals reversed a $4,500 trial award for Stephen Clark on March 25. He sued Dillard's and The Campbell Agency in county court in 2011 for misappropriation of likeness, breach of contract, breach of fiduciary duty and unjust enrichment.

Clark claimed the agency provided him to model Roundtree & York underwear for a photo shoot in 1998. Dillard's responded that Clark knew the photos were for its advertisements and that he was paid $4,050 for his work. The retailer purportedly used the photos on underwear packages from 2005 to 2011 without paying Clark.

Dillard's argued the statute of limitations had expired, that Clark had two years - until the fall of 2007 - to sue because the claims accrued by the fall of 2005.

"Dillard's relied on plaintiff's silence," Dillard's stated in a motion for summary judgment from December 2012. "Dillard's destroyed its documents related to the photo shoot; Campbell (plaintiff's agent) and McKool (the photographer) did too. Even the plaintiff destroyed his records. Likewise, because of the long delay, witnesses are dead and memories are faded."

The trial court granted Dillard's motion for summary judgment on all of Clark's claims except misappropriation of likeness and unjust enrichment. A jury later concluded Dillard's was unjustly enriched and did misappropriate his likeness, but that the misappropriation "was excused as a result of a mistake."

The trial judge ordered Clark take nothing on the misappropriation of likeness claim, but awarded the $4,500 on the unjust enrichment claim.

Writing for the appeals court, Justice Lana Myers agreed with the defendants that the unjust enrichment claim accrued when Dillard's first displayed Clark's image on packaging in September 2005 without having paid him for such use.

"The type of wrong or injury in this case is a company's unjust enrichment by using a model's image without payment on packaging for products prominently displayed in stores open to the public," the 26-page opinion stated. "Unlike the wrongs and injuries to which the [Texas Supreme Court] has applied the discovery rule, this type of injury is not by its nature hidden or undetectable but is readily observable and on public display. This type of wrong or injury is generally capable of detection within two years by the plaintiff entering the store and seeing the display. The fact that a particular plaintiff might not enter one of the stores where the product is on display within two years of the first display does not make the company's unjust enrichment inherently undiscoverable."

Dillard's spokeswoman Julie Johnson Bull declined to comment on the ruling.

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